Chandiramani, J. - (1.) THIS is a defendants, appeal against the decree of Sri Mohammad Tufail Ahmad, Civil Judge, Bahraicb, dated the 4th November,1946.
(2.) THE defendants -appellants (defendants 1 to 4) sold 43. 44 acres pukhtadari patti in v, Pitarha for Rs. 65 1/13/6 to the plaintiffs 3 to 5 on 31st December, 1934, 25.80 acres thereof were usufructuary mortgaged with Sheosaran Singh on 21th July, 1928, and this area was in possession of the mortgagee. On 21st September, 1945, plaintiffs 3 to 5 sold their rights to the plaintiffs 1 and 2 with the permission of the Civil Judge and the Deputy Commissioner, Bahraich. A suit was filed then by the plaintiffs for recovery of possession and for mesne profits. There was a prayer also for redemption against defendant No. 5 who was alleged to be the representative of the mortgagee. It was alleged on behalf of the plaintiffs that nothing whatever was due on the mortgage as the entire sum had been paid off from the usufruct of the property. The plaintiffs claimed to be agriculturists. Defendants 1 to 4 also alleged that nothing whatever was due on the mortgage. Their case was that with the consent of defendant No. 5, the mortgagee, they were in possession of the mortgaged property. They objected that the Suit for possession could not be combined with the suit for redemption in the circumstances of this case. Defendant No. 5 the mortgagee, stated that the whole mortgage money was still due.
(3.) AT the commencement of the arguments the plaintiffs gave up their claim for redemption. On behalf of the defendants it had been urged that the defendant No. 3 was a minor at the time of the execution of the sale -deed and, therefore, it was null and void. It was also said that the sale -deed bad been obtained by fraud. The plaintiffs had claimed compensation for certain trees which they alleged that the defendants had cut away from the property. They had claimed mesne -profit also for over three years,;